Com. v. The Real Property and Improvements at 2338 N. Beechwood St., Phila., PA 19132 Appeal of: T. Burney , 2016 Pa. Commw. LEXIS 130 ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
:
v. : No. 631 C.D. 2012
: Argued: February 10, 2016
The Real Property and Improvements :
at 2338 N. Beechwood Street :
Philadelphia, PA 19132 :
:
Appeal of: Takeela Burney :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION BY JUDGE BROBSON FILED: March 15, 2016
On remand from the Supreme Court of Pennsylvania,1 we consider for
a second time the appeal of Takeela Burney (Claimant) from the March 14, 2012
Order of the Court of Common Pleas of Philadelphia County (trial court), granting
the Forfeiture Petition of the Commonwealth of Pennsylvania (Commonwealth)
pursuant to what is commonly referred to as the Controlled Substances Forfeiture
Act (Forfeiture Act).2 For the reasons set forth below, we will vacate the trial
court’s order and remand the matter to the trial court for a new hearing.
1
Commonwealth v. 2338 N. Beechwood St., 114 A.3d 1036 (Pa. 2015) (mem.)
(per curiam) (Remand Order).
2
42 Pa. C.S. §§ 6801-6802.
The background of this matter, as recounted in our prior opinion, is as
follows:
On July 26, 2011, the Commonwealth filed the
[Forfeiture] Petition against 2338 N. Beechwood Street,
Philadelphia, Pennsylvania (the Property), seeking
forfeiture of the Property on several grounds; however,
those relevant to this appeal are: (1) an alleged controlled
purchase of crack cocaine for $20.00 between a
confidential informant and two individuals, Kalisha Byrd
and Frank Burney, occurred at the entry of the Property
on May 6, 2010; (2) a search warrant executed at the
Property on May 7, 2010 that resulted in the seizure of
controlled substances and U.S. currency; and (3) the
May 7, 2010 arrests of Frank Burney, Kalisha Byrd and
Tob Martin pursuant to the Controlled Substance, Drug,
Device and Cosmetic Act (Drug Act).[3]
Claimant did not file an Answer to the [Forfeiture]
Petition, and neither Claimant nor the Commonwealth
filed interrogatories or conducted discovery. On
March 13, 2012, a hearing on the [Forfeiture] Petition
took place before the trial court. At the hearing, the
Commonwealth presented the testimony of Officer
Eugene Kittles (Officer) of the Philadelphia Police
Narcotics Division. Officer testified that on May 6,
2010, he met with a confidential informant who was
given $20.00 of prerecorded buy money with instructions
to purchase crack cocaine at the Property. Officer stated
that after going to the Property and coming into contact
with Kalisha Byrd, who had exited the Property, the
confidential informant engaged Kalisha Byrd in
conversation and gave her the $20.00. Officer testified
that Kalisha Byrd returned to the Property and came into
contact with Frank Burney. Frank Burney handed
Kalisha Byrd items that were later tested by the
Philadelphia Police Narcotics Division in the presence of
3
Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§ 780-101 to -144.
2
Officer and a colleague, which were determined to be
two vials containing crack cocaine.
Officer further testified that, on the following day,
May 7, 2010, he and a colleague returned to the area near
the Property to conduct surveillance, where they
observed two females and three males approach the
Property and meet with Kalisha Byrd separately; each
time Kalisha Byrd would exit the Property the unknown
individuals would hand her U.S. currency, and she would
briefly return and hand items to the unknown individuals.
Officer stated that, later that day, he and two other
officers executed a search warrant at the Property
whereupon they: (1) confiscated fifteen jars of
marijuana, empty jars, and $35 in U.S. currency from
Tob Martin in the middle bedroom; (2) arrested Tob
Martin; (3) found a photograph of Kalisha Byrd and
Frank Burney and a Verizon phone bill containing Frank
Burney’s name and the address of the Property; (4)
confiscated a bag containing a quarter ounce of cocaine
and 24 vials of crack cocaine in the basement; and (5)
confiscated $237 in U.S. currency from the living room.
Officer stated that all of the confiscated drugs tested
positive for cocaine base and marijuana. Officer noted
that Kalisha Byrd and Frank Burney were arrested on a
bus as they were nearing the 1700 block of 19th Street,
apparently returning to the Property, and $337 in U.S.
currency was then confiscated from Kalisha Byrd.
Claimant, who is indigent, appeared pro se at the
hearing. Claimant did not present witnesses,
cross-examine Officer, object to testimonial or
documentary evidence, or attempt to assert the innocent
owner defense or other constitutional challenges that may
have been available to her. When it was Claimant’s turn
to cross-examine Officer’s testimony, the trial court
prompted Claimant by asking if she had any questions for
Officer. Stating that she did, Claimant proceeded to
make statements rather than ask questions. The trial
court told Claimant that it was not her turn to tell her
story and inquired whether she had any questions to
which she replied, “Not at this time.”
During the hearing, the trial court identified certain
documents by Exhibit numbers: C–3—property receipts;
3
C–4—chemical analysis; C–5—criminal extracts for
Frank Burney, Jr. and Kalisha Byrd; and C–6—deed to
233[8] N. Beechwood Street. The Commonwealth did
not formally move these documents into evidence before
it rested. At the conclusion of the hearing, the trial court
ordered the Property forfeited and transferred to the
custody of the Philadelphia District Attorney’s Office.
Claimant, now represented by counsel, pro bono, timely
appealed to this Court.
On April 30, 2012, the trial court issued an Order
requiring Claimant to file a Concise Statement of Errors
Complained of on Appeal pursuant to Rule 1925(b) of
the Pennsylvania Rules of Appellate Procedure (1925(b)
Statement), Pa. R.A.P. 1925(b), no later than
May 21, 2012. By and through counsel, Claimant timely
filed the 1925(b) Statement, contending that the trial
court erred in: (1) concluding that the Commonwealth
established a nexus; (2) concluding that the
Commonwealth sufficiently established that the Property
was unlawfully used, possessed, or otherwise subject to
forfeiture; (3) failing to recognize that Claimant is an
innocent, lawful owner of the Property and that any
unlawful use or possession was without her knowledge or
consent; (4) concluding that the Property was subject to
forfeiture based upon a 2004 Agreement (Agreement)
because Claimant was not a party to the Agreement and
the Commonwealth failed to prove that Claimant was
aware of it; (5) failing to recognize that the forfeiture of
the Property is constitutionally prohibited in violation of
the Excessive Fines clause of Article I, Section 13 of the
Pennsylvania Constitution and the Fourteenth
Amendment of the United States Constitution; (6) not
ensuring that Claimant, a pro se litigant, understood that
she had a right to a jury trial and that she could assert
affirmative defenses to the [Forfeiture] Petition,
including an innocent owner defense; and (7) not
appointing counsel for Claimant.
On August 13, 2012, pursuant to Rule 1925(a) of
the Pennsylvania Rules of Appellate Procedure, Pa.
R.A.P. 1925(a), the trial court issued an Opinion in
support of its Order granting the forfeiture of the
Property. Therein, the trial court concluded that the
4
Commonwealth had met its burden to prove, by a
preponderance of the evidence, “that there was a nexus
between the [P]roperty seized and illegal drug activity.”
(Trial Ct. Op. at 9.) The trial court found that “the
[P]roperty was being used to facilitate the sale of illegal
drugs.” (Trial Ct. Op. at 9.) The trial court determined
that Claimant failed to meet her burden of proof under
Section 6802(j) of the Forfeiture Act to establish, by a
preponderance of the evidence, that she was an innocent
owner. (Trial Ct. Op. at 10.) In addressing the alleged
violations of Claimant’s constitutional rights, the trial
court stated that “[i]ssues not raised in the lower court are
waived and cannot be raised for the first time on appeal,”
and concluded that Claimant waived those issues
pursuant to Rule 302(a) of the Pennsylvania Rules of
Appellate Procedure, Pa. R.A.P. 302(a). (Trial Ct. Op.
at 11.)
The trial court rejected Claimant’s argument that
she should have been informed of her right to a jury trial
because the trial court had no obligation to inform
Claimant of such a right as “a petition for forfeiture is
truly civil” and not criminal. (Trial Ct. Op. at 11.) The
trial court concluded that Claimant waived any right to a
jury trial because Claimant was bound by the deemed
waiver of the civil rule, which states “that right shall be
deemed waived unless a party files and serves a written
demand for a jury trial not later than twenty days after
service of the last permissible pleading.” (Trial Ct. Op.
at 11 (citing Pa. R.C.P. No. 1007.1(a)).) The trial court
contrasted the “deemed waiver” of Rule 1007.1(a) of the
Pennsylvania Rules of Civil Procedure, Pa. R.C.P.
No. 1007.1(a), with the heightened requirements under
Rule 620 of the Pennsylvania Rules of Criminal
Procedure, Pa. R. Crim. P. 620, highlighting that the
criminal rule contains a presumption that a defendant will
proceed with a jury trial that can only be rebutted if both
the defendant and the Commonwealth agree to waive this
right, and if the waiver is knowing and intelligent. (Trial
Ct. Op. at 12.) Reasoning that a forfeiture proceeding is
quasi-criminal in nature, but civil in form, the trial court
believed it was bound by the civil rule and, therefore, had
5
no obligation to inform Claimant of her right to a jury
trial. (Trial Ct. Op. at 12–13.)
Regarding Claimant’s failure to raise the innocent
owner defense or any other affirmative defenses, the trial
court stated that pro se representation does not relieve a
claimant of the duty to properly raise and develop
applicable claims, that “‘any layperson choosing to
represent himself in a legal proceeding must, to some
reasonable extent, assume the risk that his lack of
expertise and legal training will prove his undoing’” and
that Claimant chose “‘to proceed pro se and [s]he cannot
expect our court to act as [her] attorney.’” (Trial Ct. Op.
at 13–14 (quoting First Union Mortgage Corp. v.
Frempong, 744 A.2d 327, 337–38 (Pa. Super. 1999)).)
The trial court dismissed Claimant’s argument that
counsel should have been appointed, citing
Commonwealth v. $9,847.00 U.S. Currency, 704 A.2d
612, 616 (Pa. 1997) (holding that, in case involving the
forfeiture of currency as derivative contraband, weighing
of three factors enunciated in Mathews v. Eldridge,
424 U.S. 319 (1976), presented little likelihood of
erroneous deprivation of property and, therefore,
weighed against a finding of a right to appointment of
counsel). The trial court further stated that, even if
Claimant had a right to counsel, Claimant never
requested the appointment of counsel. (Trial Ct. Op.
at 15.)
Commonwealth v. 2338 N. Beechwood St., 65 A.3d 1055, 1057-61 (Pa. Cmwlth.
2013) (en banc) (2338 N. Beechwood St. I), vacated and remanded per curiam,
114 A.3d 1036 (Pa. 2015) (mem.).
In 2338 N. Beechwood St. I, this Court vacated the trial court’s
forfeiture order and remanded the matter to the trial court for a new hearing.
Addressing only one of the issues that Claimant raised on appeal, the Court held,
as a matter of due process, that Claimant should have been advised of her right to a
jury trial on the Forfeiture Petition and that any waiver of that right had to “be
knowing, intelligent, and on the record.” Id. at 1065. In so doing, we rejected the
6
trial court’s view that pursuant to Rule 1007.1(a) of the Pennsylvania Rules of
Civil Procedure, Claimant waived her right to a jury trial by failing to make a
timely demand for the same.4 Relying on this Court’s decision in Commonwealth
v. 605 University Drive, 61 A.3d 1048 (Pa. Cmwlth. 2012) (plurality)
(605 University Drive I), rev’d, 104 A.3d 411 (Pa. 2014), we concluded that
Rule 1007.1(a) of the Pennsylvania Rules of Civil Procedure did not apply to
forfeiture proceedings. Id. The Commonwealth filed a petition for allowance of
appeal with the Pennsylvania Supreme Court.
While that petition was pending, the Pennsylvania Supreme Court
reversed this Court’s decision in 605 University Drive I, particularly this Court’s
holding that the Pennsylvania Rules of Civil Procedure did not apply in forfeiture
proceedings. See Commonwealth v. 605 Univ. Dr., 104 A.3d 411 (Pa. 2014)
(605 University Dr. II). On May 20, 2015, the Supreme Court issued its Remand
Order with respect to the Commonwealth’s petition for allowance of appeal in this
matter:
AND NOW, this 20th day of May, 2015, the
Petition for Allowance of Appeal is GRANTED, and the
order of the Commonwealth Court is VACATED. See
Commonwealth v. 605 University Drive, 104 A.3d 411
(Pa. 2014). This case is REMANDED for consideration
of Takeela Burney’s remaining appellate issues.
4
Rule 1007.1(a) provides:
In any action in which the right to jury trial exists, that right shall be
deemed waived unless a party files and serves a written demand for a jury trial not
later than twenty days after service of the last permissible pleading. The demand
shall be made by endorsement on a pleading or by a separate writing.
Pa. R.C.P. No. 1007.1(a).
7
Following remand, the Court ordered the parties to submit status reports,
describing Claimant’s remaining issues on appeal. Both Claimant and the
Commonwealth submitted status reports. On September 3, 2015, the Court issued
an order, directing the parties to file briefs on the remaining appellate issues.
Claimant raises the following issues:5 (1) whether the
Commonwealth failed to prove a sufficient and substantial nexus between the
Property and illegal drug activity; (2) whether Claimant should be considered an
innocent owner under the Forfeiture Act; (3) whether the forfeiture in this case
amounts to an unconstitutional excessive fine;6 (4) whether the Commonwealth
could rely on the Agreement between the Commonwealth and the prior owner of
the Property to support its Forfeiture Petition;7 (5) whether the trial court failed to
5
“An appellate court’s scope of review in an appeal from a forfeiture proceeding is
limited to examining whether findings of fact made by the trial court are supported by substantial
evidence, and whether the trial court abused its discretion or committed an error of law.”
Commonwealth v. Real Prop. and Improvements Commonly Known as 5444 Spruce St.,
832 A.2d 396, 398 (Pa. 2003). When the appeal hinges on questions of law, however, our
review is plenary. Id. When reviewing for an abuse of discretion, a reviewing court may
examine the entire record to determine whether it supports the reasons set forth by the trial court
in making its determination. Commonwealth v. Smith, 757 A.2d 354, 357 (Pa. 2000).
6
The Eighth Amendment to the United States Constitution, made applicable to the States
through the Fourteenth Amendment to the United States Constitution, provides: “Excessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
(Emphasis added.) Nearly identical language appears in Article I, Section 13 of the
Pennsylvania Constitution.
7
While true that the Commonwealth mentions the Agreement in its Forfeiture Petition
and made reference to the Agreement during the forfeiture hearing in this case, the trial court
neither made any factual findings about the Agreement or relied upon it in ordering forfeiture of
the Property. Accordingly, even assuming Claimant is correct that the Agreement could not be
used against her in the forfeiture proceeding, no such error is apparent on the record. We,
therefore, will not address this issue any further.
8
afford Claimant due process; and (6) whether Claimant should have been
appointed counsel. For its part, the Commonwealth contends that Claimant waived
her excessive fines argument and her challenge to the Agreement by failing to raise
and preserve those issues before the trial court.
In considering the parties’ issues and arguments, we are persuaded
that we must, as we did in 2338 N. Beechwood St. I, consider whether Claimant
was afforded procedural due process in the forfeiture proceeding below. Claimant
contends that the proceeding below was “fundamentally unfair and lopsided” in
favor of the Commonwealth, represented by counsel trained specifically on the law
applicable to civil forfeiture proceedings. Claimant, indigent and proceeding pro
se, simply did not have the knowledge, training, background, and experience to
know what rights she had, let alone how to assert those rights in a court
proceeding. Claimant contends that under those circumstances, the trial court and
the Commonwealth should have done more to advise Claimant of her rights
attendant to the forfeiture proceeding in order to ensure Claimant had a meaningful
opportunity to participate and protect her property interest. Claimant also renews
her claim that she should have received court-appointed counsel.
In response, the Commonwealth contends that it complied with all of
the procedural safeguards set forth in the Forfeiture Act. It provided Claimant with
the form of notice required under Section 6802(b) of the Forfeiture Act, and the
trial court conducted the hearing required under Section 6802(i) of the Forfeiture
Act prior to issuing its order granting the Forfeiture Petition. According to the
Commonwealth, “[d]ue process required nothing more.” (Commonwealth Br. at
39.) The Commonwealth contends that by choosing to represent herself in the
forfeiture proceeding, “[C]laimant assumed the risk that her lack of expertise and
9
legal training would prove her undoing.” (Id. at 41.) The Commonwealth notes
that the Pennsylvania Supreme Court has already held that there is no due process
right to court-appointed counsel in forfeiture proceedings under the Forfeiture Act.
Commonwealth v. $9,847.00 U.S. Currency, 704 A.2d 612, 617 (Pa. 1997).
In reply, Claimant contends that the trial court and the
Commonwealth were required to do more than meet the notice requirement in the
Forfeiture Act and conduct a hearing. Claimant contends that the trial court and
the Commonwealth should have notified Claimant that the proceeding on
March 13, 2012, was, in fact, a hearing, or trial, at which Claimant would have the
opportunity to call witnesses, object to the Commonwealth’s evidence, and assert
defenses. Directing the Court to the hearing transcript, Claimant contends that the
trial court failed to provide Claimant any assistance. The trial court did not ask
Claimant if she wished to call any witnesses or offer any documentary evidence.
Instead, after Claimant testified, the trial court summarily granted the Forfeiture
Petition. All of this, Claimant argues, evidences a fundamentally unfair trial.
(Claimant Reply Br. at 1-4.) Claimant refutes the Commonwealth’s charge that
Claimant “chose” to represent herself; rather, Claimant contends she had no
choice, in light of her limited means and limited understanding of the legal system.
Claimant does not seek an advantage from being pro se; rather, she seeks only a
“level playing field.” (Id. at 4.) Finally, Claimant argues that the facts in this case
warrant a different conclusion on the issue of court-appointed counsel and that the
Supreme Court’s decision in $9,847.00 U.S. Currency was limited to the facts in
that case.
As to due process, the Superior Court of Pennsylvania has observed:
“[C]onsiderations of due process involve common-sense reasoning and
10
fundamental fairness. . . . [D]ue process is a flexible concept incapable of exact
definition, and is concerned with the procedural safeguards demanded by each
particular situation in light of the legitimate goals of the applicable law.” In re
F.C. III, 966 A.2d 1131, 1138 (Pa. Super. 2009), aff’d, 2 A.3d 1201 (Pa. 2010).
The right to procedural due process attaches where there is an alleged deprivation
of a protected property or liberty interest. Davenport v. Reed, 785 A.2d 1058,
1062 (Pa. Cmwlth. 2001). Although both deprivations trigger due process
protections, the Pennsylvania Supreme Court has opined that “property interests
are generally accorded less protection than are liberty interests.” $9,847.00 U.S.
Currency, 704 A.2d at 615.
In $9,847.00 U.S. Currency, the Supreme Court considered the
question of whether a convicted drug offender was entitled to court-appointed
counsel in a forfeiture proceeding under the Forfeiture Act, where the
Commonwealth sought forfeiture of money seized from the convict’s home as
alleged proceeds from illegal drug transactions. Applying the test set forth by the
Supreme Court of the United States in Mathews v. Eldridge, 424 U.S. 319 (1976),
the Pennsylvania Supreme Court considered three factors in determining whether
the right to counsel attached to civil forfeiture proceedings: (1) the private interest
at stake; (2) the governmental interest at stake; and (3) the likelihood of an
erroneous decision. With respect to the first factor, the Pennsylvania Supreme
Court held that the convict asserted at most a property interest in the currency,
which commanded a lesser level of due process protection. $9,847.00 U.S.
Currency, 704 A.2d at 615. With respect to the second factor, the Supreme Court
held that the government has a strong financial interest, both in terms of the
proceeds from forfeiture proceedings as well as the cost of providing indigent
11
claimants counsel in all civil forfeiture cases. The Supreme Court also recognized
the government’s interest, reflected in the Forfeiture Act, “in deterring illegal drug
transactions by depriving those who illegally deal in controlled substances of the
ill-gotten profits of those endeavors and of the instrumentalities used in aiding
violations of controlled substance laws.” Id. at 616. With respect to the third
factor, the Supreme Court found the risk of an erroneous decision in a forfeiture
proceeding to be low:
In most cases, a forfeiture proceeding will be
preceded by either a criminal conviction or a guilty plea
to a violation of [the Drug Act]. The present case is
illustrative. The risk of erroneous deprivation of property
here is particularly slight given that appellee has pleaded
guilty to various drug offenses, and the property subject
to forfeiture is currency found in close proximity to other
evidence of illegal drug transactions, including marijuana
and a scale containing cocaine residue. Furthermore,
$1,250 of the currency seized was traceable directly to
undercover drug transactions undertaken during
Pennsylvania State Police investigations. Given the
quantum of evidence in the Commonwealth’s possession
and given appellee’s plea in the related criminal matter,
there is little likelihood of an erroneous deprivation of
property in this case.
Id. For these reasons, the Supreme Court definitively held “that there is no
constitutional right to the appointment of counsel for indigent claimants in civil
forfeiture matters.” Id. at 617.
In light of this ruling by the Supreme Court, we must reject
Claimant’s argument that she was entitled to court-appointed counsel in the
forfeiture proceeding below as a matter of due process. We acknowledge that the
facts in this case are different in many ways from those on which the Supreme
Court based its analysis in $9,847.00 U.S. Currency. The property at issue here is
real property (Claimant’s home), not personal property (cash). Moreover,
12
Claimant here was not charged with and thus not convicted of engaging in any
illegal drug activity. We, therefore, do not foreclose the possibility that the
Pennsylvania Supreme Court may conclude that under this different set of facts,
court-appointed counsel to indigent claimants is an appropriate and necessary due
process protection. See 2338 N. Beechwood St. I, 65 A.3d at 1063-64 (analyzing
United States Supreme Court precedent8 and concluding that “the forfeiture of
one’s home implicates the fundamental rights of ‘personal security,’ ‘personal
liberty,’ and ‘private property’”). Until such time, however, we are bound by the
clear pronouncement of law in $9,847.00 U.S. Currency.
Although Claimant did not have a right to court-appointed counsel
below, she nonetheless had a right to be represented by counsel, as the
Pennsylvania Superior Court has acknowledged: “The right to be represented by
counsel cannot be equated with the right to receive court-appointed counsel. The
right to be represented by counsel in civil proceedings is one accorded to all
individuals. However, all civil litigants do not have the right to court-appointed
counsel.” See Weir v. Weir, 631 A.2d 650, 657 (Pa. Super. 1993). The
Commonwealth contends that Claimant was aware of her right to be represented by
counsel, but chose to represent herself, voluntarily assuming the risk that comes
with such a decision. We find no record support for the Commonwealth’s position
that Claimant was aware that she could be represented by counsel but chose to
represent herself. To the contrary, we conclude that Claimant was not given fair
notice of the right to legal representation and, if she could not afford the same,
8
See Meyer v. Nebraska, 262 U.S. 390 (1923); Boyd v. United States, 116 U.S. 616
(1886).
13
information on where she could secure legal representation. Our Supreme Court,
by promulgating Rule 1018.1 of the Pennsylvania Rules of Civil Procedure, has
concluded that every civil defendant must be afforded such notice. Those whose
property is sought by the Commonwealth through civil forfeiture proceedings
should be entitled to nothing less.
In 605 University Drive II, which the Supreme Court cites in its
Remand Order in this case, our Supreme Court held that the Pennsylvania Rules of
Civil Procedure apply to fill in the gaps in the Forfeiture Act. 605 University
Drive II, 104 A.3d at 428 (“[T]he civil nature of the proceedings brings forfeiture
squarely within the ambit of the Rules when there is no conflict with the specific
procedure of the Forfeiture Act, notwithstanding the technical differences between
a complaint and petition.”) The Supreme Court explained that “applying the Rules
of Civil Procedure to forfeiture proceedings will provide guidance and regulate
practice, supplying a fair and efficient methodology for resolution of any
procedural issues that arises and is not addressed by the Forfeiture Act itself.” Id.
at 427 (emphasis added).
Section 6802(b) of the Forfeiture Act, requires the following notice to
property owners:
(b) Notice to property owners.--A copy of the
petition required under subsection (a) shall be served
personally or by certified mail on the owner or upon the
person or persons in possession at the time of the seizure.
The copy shall have endorsed a notice, as follows:
To the Claimant of within Described
Property: You are required to file an answer to
this petition, setting forth your title in, and right to
possession of, said property within 30 days from
the service hereof, and you are also notified that, if
you fail to file said answer, a decree of forfeiture
14
and condemnation will be entered against said
property.
The notice shall be signed by the Attorney
General, Deputy Attorney General, district attorney,
deputy district attorney or assistant district attorney.
(Emphasis added.) This notice provision essentially advises the claimant of the
requirement to file an answer, the information that must be contained in the
answer, and the consequences of failure to file an answer—i.e., that “a decree of
forfeiture and condemnation will be entered against” the property. Section 6802(b)
of the Forfeiture Act.
Rule 1018.1(a) of the Pennsylvania Rules of Civil Procedure provides
that every complaint in a civil matter be endorsed with a notice, called a notice to
defend, in substantially the form set forth in subdivision (b) of the rule. The
mandatory notice to defend differs from the statutory notice in the Forfeiture Act in
one material respect. In addition to advising the defendant of the need to respond,
the time period within which she must do so, and the consequence for failure to file
a timely response, Rule 1018.1(b) requires the following language appear in the
notice to defend:
YOU SHOULD TAKE THIS PAPER TO YOUR
LAWYER AT ONCE. IF YOU DO NOT HAVE A
LAWYER, GO TO OR TELEPHONE THE OFFICE
SET FORTH BELOW. THIS OFFICE CAN PROVIDE
YOU WITH INFORMATION ABOUT HIRING A
LAWYER.
IF YOU CANNOT AFFORD TO HIRE A
LAWYER, THIS OFFICE MAY BE ABLE TO
PROVIDE YOU WITH INFORMATION ABOUT
AGENCIES THAT MAY OFFER LEGAL SERVICES
TO ELIGIBILE PERSONS AT A REDUCED FEE OR
NO FEE.
______________________________
(Name)
15
______________________________
(Address)
______________________________
(Telephone Number)
Pa. R.C.P. No. 1018.1(b). The rule further requires that all courts, by local rule,
“designate the officer, organization, agency or person to be named in the notice
from whom information can be obtained.” Id. No. 1018.1(c). The rule also
permits courts to “require the notice to be repeated in one or more designated
languages other than English.” Id.
According to the accompanying Explanatory Comment, Rule 1018.1,
particularly the portion relating to legal counsel, was drafted at the behest of the
Pennsylvania Attorney General:
New Rule 1018.1 “Notice to Defend”, adopted
January 23, 1975 and effective July 1, 1975, and the
related amendments to the other Rules, had their origin in
a request from the Attorney General for amendment to
Pennsylvania’s historic “Notice to Plead” rule which
required the notice to be “endorsed” upon a complaint to
which a responsive answer is required.
The Attorney General suggested that the legalistic
and uniformative nature of the “Notice to Plead” was
inadequate in the case of “uneducated, uninformed and
unsophisticated defendants” and raised due process
problems, particularly in the case of Spanish-speaking
minority groups who had little, if any, knowledge of the
English language. . . .
The Attorney General also suggested that, with the
extension of legal aid services to practically every county
of the Commonwealth under federally financed
programs, the “Notice to Defend” should also note the
availability of legal services or legal reference agencies.
The right of indigents to representation in civil actions
which lead to deprivation of “substantial rights” has been
held to raise due process and equal protection questions
16
where the court fails to assign counsel. In re Adoption of
R.I., 455 Pa. 29 (1973).
Pa. R.C.P. No. 1018.1 cmt.; Laudenberger v. Port Auth. of Allegheny Cnty.,
436 A.2d 147, 151 (Pa. 1981) (“These explanatory notes have not been officially
adopted or promulgated by this Court, nor do they constitute part of the rule.
However, they indicate the spirit and motivation behind the drafting of the rule,
and they serve as guidelines for understanding the purpose for which the rule was
drafted.”), appeal dismissed, 456 U.S. 940 (1982). Indeed, the comment notes a
survey submitted by the Attorney General, revealing that in Philadelphia, the situs
of the forfeiture at issue in this case, “large numbers of default judgments were
entered against defendants who did not understand what was required of them or
where to turn for legal help.” Pa. R.C.P. No. 1018.1 cmt. (emphasis added).
“New Rule 1018.1 deals with all the considerations raised by the Attorney
General.” Id.
As noted above, Section 6802(b) of the Forfeiture Act does not itself
require that a party facing forfeiture be advised to seek advice of a lawyer and that
the party be given information about legal services agencies that may be able to
offer legal services for free or at a reduced price if the party is unable to afford to
hire a lawyer. Because the Forfeiture Act does not in any way address a party’s
important right to be represented by counsel, the provisions regarding right to
counsel set forth in Rule 1018.1(b) are not in conflict with the Forfeiture Act.
Moreover, providing this type of due process protection applicable to all other civil
litigation will not interfere or conflict with the statutory scheme established for
forfeiture proceedings. Rule 1018.1(b), therefore, fills the gap not addressed in the
Forfeiture Act regarding the procedure to be followed to give notice to a claimant
of the right to be represented by counsel. Because the two provisions may be
17
construed together without contradiction, we conclude that the above-quoted notice
of right to be represented by counsel provision found in Rule 1018.1(b) must be
included in the notice to the claimant under the Forfeiture Act pursuant to the
Supreme Court’s ruling in 605 University Drive II.
Our decision here to afford Claimant the additional due process
protection of notice of her right to be represented by counsel is consistent with the
Pennsylvania Supreme Court’s analysis in $9,847.00 U.S. Currency. Claimant is
clearly entitled to some level of due process protection commensurate with her
property interest in her home (the Property), which we balance against the
government’s strong interest reflected in the Forfeiture Act. Whereas providing
court-appointed counsel to every indigent claimant may impose a financial burden
on the government, requiring the Commonwealth to incorporate the notice of the
right to counsel in its notice to claimants under the Forfeiture Act does not impose
any greater burden on the Commonwealth than every other plaintiff bears in civil
litigation in our Commonwealth. Finally, informing claimants of their right to be
represented by counsel and where they may be able to secure legal assistance at
reduced or no cost may limit the risk of erroneous deprivations of property,
particularly in cases like this one, where the claimant was never convicted, let
alone accused of, a crime. Such claimants, who did not receive the level of due
process afforded in a criminal proceeding, deserve a fair hearing in a civil court of
law.
Simply stated, affording claimants in civil forfeiture proceedings
notice of a right to representation by counsel and information on where they might
secure counsel at reduced or no cost places claimants in civil forfeiture
proceedings on equal footing with defendants in all other types of civil proceedings
18
in the courts of common pleas. Although we do not reach the question of whether
the result in this case would have been any different had Claimant secured counsel
before proceeding to a hearing on the Commonwealth’s Forfeiture Petition, upon
review of the hearing transcript in this case, as well as the waiver arguments
advanced by the Commonwealth and the trial court, we are satisfied that Claimant
certainly could have benefited from representation by counsel. In the absence of
the type of notice of the right to counsel afforded to all civil litigants under
Rule 1018.1, we cannot conclude that Claimant made a conscious choice to
proceed without counsel below. For the foregoing reasons, we vacate the trial
court’s forfeiture order and remand the matter to the trial court for a new hearing
consistent with this opinion.9
P. KEVIN BROBSON, Judge
Judge Simpson concurs in result only.
9
Because of our disposition, we do not reach Claimant’s remaining issues (e.g.,
substantial nexus, innocent owner, excessive fine), which go to the merits of the
Commonwealth’s Forfeiture Petition.
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
:
v. : No. 631 C.D. 2012
:
The Real Property and Improvements :
at 2338 N. Beechwood Street :
Philadelphia, PA 19132 :
:
Appeal of: Takeela Burney :
ORDER
AND NOW, this 15th day of March, 2016, the order of the Court of
Common Pleas of Philadelphia County (trial court) is hereby VACATED, and the
matter is REMANDED to the trial court for a new hearing consistent with this
Opinion.
Jurisdiction relinquished.
P. KEVIN BROBSON, Judge